Citation NR: 9630315
Decision Date: 10/24/96 Archive Date: 11/08/96
DOCKET NO. 93-24 711 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Denver, Colorado
THE ISSUE
Entitlement to an increase in the 20 percent evaluation
currently assigned for the service-connected residuals of a
compression fracture of the 10th thoracic vertebra with mild
degenerative joint disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from July 1977 to July 1980
and from October 1980 to October 1984.
This matter was initially before the Board of Veterans’
Appeals (Board) on appeal from a September 1991 rating action
by the RO. A personal hearing before the RO was conducted in
January 1993. The Board remanded the appeal to the RO for
additional development in October 1995 and May 1996.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected back disorder
is more severe than is reflected by the 20 percent evaluation
currently assigned.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for increase for the
service-connected residuals of a compression fracture of the
10th thoracic vertebra with mild degenerative joint disease
is denied by operation of law.
FINDING OF FACT
The veteran, without demonstrating good cause, did not report
for a VA orthopedic examination scheduled in July 1996, in
conjunction with his claim for increase.
CONCLUSION OF LAW
The veteran’s claim for an increased rating for the service-
connected residuals of a compression fracture of the 10th
thoracic vertebra with mild degenerative joint disease must
be denied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 &
Supp. 1995) 38 C.F.R. § 3.655(b) (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board finds the veteran's claim for increased
compensation benefits is "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a). The United States Court of
Veterans Appeals (Court) has held that, when a veteran claims
a service-connected disability has increased in severity, the
claim is well grounded. Proscelle v. Derwinski, 2 Vet.App.
629 (1992). The Court has also stated that where entitlement
to compensation has already been established and an increase
in the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7
Vet.App. 55 (1994).
Initially, it is pointed out that the RO made numerous
attempts to contact the veteran for the purpose of
examination and to obtain additional evidence pertaining to
medical treatment for his service-connected back disability.
The RO contacted the veteran’s representative (twice), his
banking institution (twice), VA vocational rehabilitation
office (twice), and the VA medical facility where he was last
examined in order to obtain a current address and assist the
veteran in the development of his claim. The RO then sent
numerous letters to all known addresses that the veteran has
resided at, but all correspondence was returned by the Post
Office. The Board also notes that, at the request of the RO,
the veteran’s representative provided VA with an address in
November 1995 and an updated address in February 1996;
however, letters sent to those addresses have been returned
by the Postal Service. Because of the veteran’s failure to
cooperate, the Board finds that any further attempts to
develop the record would be unavailing.
The law provides that when a claimant fails to report for an
examination scheduled in conjunction with a claim for
increased, the claim shall be denied. 38 C.F.R. § 3.655(b)
(1995).
In the instant case, the veteran failed to report for
scheduled VA examinations in July 1996 and has not provided
an acceptable explanation for his failure to appear. The
VA's duty to assist is not a one-way street. If the veteran
wishes help, he cannot passively wait for it in those
circumstances where his own actions are essential in
obtaining the putative evidence. Wood v. Derwinski, 1
Vet.App. 191 (1991); Hayes v. Brown, 5 Vet.App. 60, 68
(1993). Therefore, by operation of law, the claim must be
denied.
ORDER
An increased rating for the service-connected residuals of a
compression fracture of the 10th thoracic vertebra with mild
degenerative joint disease is denied.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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